Last week, the First Circuit addressed whether a conviction for third-degree assault in California could be properly characterized as a crime of violence under 8. U.S.C. section 16(a). Both parties agreed that a conviction under this statute could not be a categorical match to the definition of a crime of violence because it criminalized reckless and negligent conduct, as well as intentional conduct. In the instant case, the Third Circuit determined that use of the modified categorical approach was not appropriate because the record of conviction did not establish under which prong of the statute the petitioner had been convicted. Moreover, the plea colloquy demonstrated that the petitioner disagreed with the prosecutor's version of events, making it even more unclear what conduct the conviction necessarily rested upon. Thus, it could not determine if the conviction rested upon intentional conduct.
The full text of Villanueva v. Holder can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1217P-01A.pdf